REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

SUCCESSION CAUSE NO. 1842 OF 1999

IN THE MATTER OF NYAMBIA MUKAYA (DECEASED)

JUDGMENT

1. Before this Court for determination is the summons for substitution of Executrix of the Will and Grant of Probate of Written will dated 3^rd May 2019 by which the Applicants seek the following orders: -

“i.  That this Honourable court be pleased to find that the deceased died testate on account of discovery of written will dated 11^th June 1993.

ii. That this Honourable Court be pleased to substitute the Executrix of the will dated 11^th June 1993 namely Wangari Maina alias Grace Wangari Maina with James Kariuki Maina and Florence Wanjiku Maina jointly.

iii. That this Honourable court be pleased to issue a grant of probate of written WILL to both James Kariuki Maina and Florence Wanjiku Maina.

iv. That cost of the application be provided for.

2. The summons filed by JAMES KARIUKI MAINA and FLORENCE WANJIKU MAINA (hereafter the Applicants) was supported by the Affidavit of even date sworn by both Applicants.

3. The Objectors DOUGLAS GICHURE GICHURU and CHARLES NGOIYO MWANGI both filed on objection to making of Grant of Probate dated 19^th September 2019. The objectors also filed a Replying Affidavit dated 19^th September 2019 in opposition to the Application. The matter was canvassed by way of oral evidence. The Applicants called two (2) witnesses in support of their case whilst the Objectors called one (1) witnesses.

 BACKGROUND

4. This Succession Cause relates to the estate of NYAMBIA MUKAYA (hereinafter ‘the Deceased’) who was said to have died intestate on 8^th August 1994. The Deceased was survived by two daughters namely GRACE WANGARI MAINA and MARGARET WANJIRU MWANGI who were the sole beneficiaries of her estate. Following the demise of the Deceased, her two daughters petitioned for a Grant of letters of Administration Intestate which grant was duly issued to the two jointly by the Muranga Senior Resident Magistrates Court on 21^st September 1995 vide Succession Cause No. 132 of 1995.

5. Thereafter one HIRAM NGOIYO who was the father to Charles Ngoiyo Mwangi the 2^nd objector herein filed a protest in his capacity as a nephew to MUKAYA MAINA the late husband of the Deceased. The 2^nd Objector filed an objection to the Grant issued to the daughters of the Deceased (Nyambia Mukaya) arguing that the Petitioners who were daughters were not entitled under Kikuyu Customary Law to inherit the property of their parents. The Objectors argued that as nephews to the Deceased’s late husband, it was they who had the right to inherit the property left behind by the Deceased.

6. Upon hearing that objection the Muranga SRMs Court delivered a judgment dated 22^nd December 1998 in favour of the Objectors. The property left behind by the Deceased being L.R. No. 13 GITUGI/803 (hereinafter the ‘suit property’) was awarded to the said Objectors. The Objectors were issued with a confirmed Grant dated 12^th November 1992.

7. The Objectors state that instead of appealing against the decision of the Muranga SRMs Court the Petitioners instead filed a separate Succession Cause being Succession Cause No. 1842 of 1999 (the present cause) before the High Court in Nairobi. In this new Succession Cause it was alleged that the Deceased had died testate, having left a written will dated 11^th June 1993 in which she appointed her daughter WANGARI WA MAINA as Executrix. A copy of the said Will appears as (Annexture J&F) to the supporting Affidavit dated 3^rd May 2019.  

8. The High Court in Nairobi (without knowledge of the earlier succession cause in Muranga) proceeded to issue a Grant of Probate with Written Will dated 4^th November 1999 to Mrs Wangari Maina one of the daughters of the Deceased. The said Executrix Wangari wa Maina passed away on 25^th February 2010. The Applicants who are the children of the said Wangari Maina now apply to be substituted as Executors of the Written Will of the Deceased.

9. The Applicants position is that the Deceased Nyambia Mukaya  left behind two daughters Grace Wangari Maina and Margaret Wanjiru Mwangi who are also now both Deceased. That Deceased owned the parcel of land known as LOC 13/Gitugi/803 (hereinafter the ‘suit land’) which parcel of land was registered in the sole name of the Deceased. Annexed to the Supporting Affidavit is a copy of the Title Deed (Annexture “J & F ‘3’).

10. The Applicants aver that in her written Will dated 11^th June 1993 the Deceased bequeathed the suit land to her daughter Wangari Maina absolutely. That following the demise of Wangari Maina and following Grant of Letters of Administration Intestate issued on 14^th January 2013 and confirmed Grant dated 7^th October 2014 to the two Applicants in respect of the Estate of Wangari Maina vide Succession Cause No. 1723 of 2012 (Annexture ‘J & F’4’ and ‘5’) the Applicants ought to be substituted as Executors of the Will of the late Nyambia Mukaya.

11. In objecting to this application for substitution the Objectors argue that it is they who are entitled to inherit the estate of the Deceased. That the Deceased Nyambia Mukaya was married to Mukaya Maina who was a son to one MAINA WA MAKUMI. The Objectors Charles Ngoiyo Mwangi and Douglas Gichure Gichuru are grandchildren of the late Maina Wa Makumi and are cousins to the petitioners.

12. The facts of this case are lengthy and very convoluted. I will rely on the history as set out by Hon Justice Onyiego in his Ruling dated 13^th March 2018 as follows:-

 “4. The genesis of this succession cause dated back as far as 8^th August 1994 when Nyambia Mukaya the Deceased whose estate these proceedings relate died. Subsequently, her only two adult surviving children (daughters) Mrs Wangari Maina (married) and Mrs Wanjiru Mwangi (married) jointly petitioned Muranga SRM Court Vide Succession Cause No. 132/95 on 21^st April 1995 for representation of a grant of letters of administration intestate. According to Form P and A 4, land LR No. Loc 13/Gitugi/803 was listed as the only asset left behind for distribution. The estate was gazette via gazette notice number 4137 of 21^st April 1995 as an intestate estate.

 5. On 21^st September 1995 a grant of letters of Administration intestate was issued to the two applicants. As a consequence, the applicants moved the court via chamber summons dated 8^th January 1996 seeking confirmation of the grant. Before confirmation, a protest dated 19^th September 1996 was filed by Douglas Gichure Gichuru claiming beneficial interest over the estate.

 6. In his protest, Douglas claimed he was a son to one Ndolo Josephat alias Gichuru Gakuru who was a step brother to the Deceased’s husband. That the deceased’s husband who predeceased the deceased (Nyambia Mukaya) sometime in the 1940s had two surviving step-brothers namely, Josephat Ndolo alias Gichure Gakuru and Hiram Ngoiyo. That during the colonial era and before land adjudication and demarcation, the deceased who had no son, moved on and started staying with her late husband step-brothers aforesaid (brother-in-laws) on the disputed land. That when the only two daughters to the deceased (petitioners) got married, Jospehat Ndolo and Hiram Ngoiyo remained on the said land which they developed and occupied as their family land to date.

 7. It was the protestor’s contention that since his father had died, and considering that the petitioners were married daughters who under Kikuyu Law were not entitled to inherit their parent’s property, the land in question had to be inherited jointly in equal share between himself on behalf of his father’s family and his uncle Hiram Ngoiyo.

 8. After hearing the protest, the trial magistrate upheld the same and confirmed the grant on 22^nd December thus sharing the property between Douglas Gichure Gichuru and Hiram Ngoiyo equally after finding that the petitioners who were old ladies and already married, had no right to inherit their parent’s property in accordance with Kikuyu Customary Law”.

13. The Objectors accuse the Petitioners of clandestinely filing a fresh succession cause (being the present cause) in respect of the same estate this time alleging that the Deceased left a written will.

14. The Objectors categorically deny that the Deceased wrote any will. They further assert that the Deceased was fully aware that the suit land did not belong to her and that the same was meant to devolve to the step-sons of her late husband and claim that is why she allowed them to settle thereon.

15. The Objectors urge the court to find that the alleged will is a forgery and to uphold the distribution of the suit land as determined by the Muranga Court.

 THE EVIDENCE

16. The matter was canvassed by way of oral evidence in open court. PW1 DOUGLAS GICHURE he states that he has filed an objection and cross-petition in this matter. PW1 confirms that the late Nyambia Mukaya was his grandmother. PW 1 concedes that the suit land is registered in the name of Nyambia Mukaya, but denies that the Deceased left any Will distributing this asset. He urges the court to uphold the decision of the Muranga Court, which issued letters of Administration to Douglas Gichure Gicheru and Hiram Ngoiyo and decreed that the suit land was to devolve to the two in equal shares.

17. PW2 LIVINGSTONE MUNIU told the court that the Deceased was married to his father’s brother and was therefore his Aunt. PW2 states that he was born and raised on the suit land and claims that it was the Deceased herself who pointed out to him where he was to construct his house. He claims that he has lived on the suit land since the year 1963.

18. PW2 confirms that the suit land is registered in the name of the Deceased but insists that the Deceased willingly allowed his father to settle on the said land as she had no sons. The witness states that the Deceased’s two daughters were married and would inherit property in their matrimonial homes. The witness denies that the Deceased left a written will and urges the court to find in favour of the objectors.

19. The Petitioner FLORENCE WANJIKU MAINA told the court that she and her brother JAMES KARIUKI MAINA are the children of GRACE WANGARE MAINA who was one of the daughters of the Deceased Nyambia Mukaya. She states that following the demise of her mother on 25^th February 2010 she and her brother obtained letters of Administration in respect of her estate.

20. The Petitioner told the court that she resided with the Deceased on the suit land whilst another parcel of land held by Deceased was transferred to Margaret Wanjiru who was a sister to her late mother. She states that the Deceased was buried on the suit land.

21. The Petitioner states that the Deceased left a written will dated 11^th June 1993 in which she named her daughter Grace Wangari (now Deceased) as executor. That in the said Will the Deceased distributed her estate to her two daughters and that the suit land parcel Loc 13/Gitugi/803  was bequeathed in the Will to her late mother Grace Wangari. Therefore, the Petitioners pray to be substituted as Administrators of the estate of the Deceased and further pray that the estate be distributed in accordance with the written Will of the Deceased.

 ANALYSIS AND DETERMINATION

22. I have carefully considered the application before this court the affidavit in reply as well as the evidence adduced by both sides. It is common ground that the Deceased in respect of whose estate this matter relates Nyambia Mukaya died on 8^th August 1994. It is not disputed that the Deceased was survived by two daughters namely Grace Wangari Maina and Margaret Wanjiru Mwangi and that the Deceased had no sons.

23. It is further not disputed that vide Muranga Succession Cause No 132 of 1995 Grant of letters of Administration Intestate to the estate of the Deceased was on 21^st September 1995 made to the two daughters of the Deceased jointly.

24. Thereafter a protest was filled by the 1^st Applicant and one Hiram Ngoiyo (Father to the 2^nd Applicant) in their capacity as nephews of the Deceased’s late husband who claimed to be entitled to the estate in priority to the daughters of the Deceased who were not entitled to inherit in accordance with Kikuyu Customary Law. Vide a judgement delivered on 22^nd December 1998 the court in Muranga found in favour of the Applicants wo were issued with a Grant which was later confirmed on 12^th November 1999 which Grant allocated to them LR No. 13/Githugi/803 the distributed parcel of land. Wangari Maina (the daughter of the Deceased) then moved to the High Court in Nairobi and filed this present succession cause seeking Grant of Probate with written Will in respect of the estate of the same. Wangari Maina was issued with Grant of Probate dated 6^th November 1999 which Grant was duly confirmed on 14^th July 2000 under which LR Loc 13/Githugi/803 devolved absolutely to the said Grace Wangari Maina.

25. The Objectors then filed a summons for revocation of Grant dated 29^th January 2001. That summons was heard by my learned brother Hon Justice John Onyiego who in his Ruling dated 10^th April 2019 recognized the fact that a will had been introduced into the proceedings. In this regard, the Hon Judge held as follows:-

“37. However, this court cannot ignore the fact that there is now an alleged will in place affecting the estate which was discovered much later after the confirmation of Murang’a court proceedings. Although there was an appeal lodged but dismissed summarily due to non compliance with order 41 of the civil procedure rules the same was not determined on merit. However,  this court has inherent powers under rule 73 and section 76 [e] to revoke the grant on its own motion in the interest of justice on account that the grant has become useless and inoperative through subsequent circumstances in this case , discovery of a Will.

38. The net effect of the above holding is that, the grant issued in Murang’a SRM case no132/1995 on 12^th November 1999 is equally revoked. The two files that is H.C. succession file number 1842/1999 and Murang’a SRM court succession cause No 132/1995 be consolidated so as to ascertain the validity of the will and subsequent determination of the beneficiaries of the estate. For avoidance of doubt subsequent proceedings shall proceed under this high court file no 1842 /1999. The respondents are hereby given 30 days within which to move the court for determination of the validity of the will as well as the appointment of new executors in place of the Executrix now deceased.  In default the confirmed grant in Murang’a court shall be reinstated”. (own emphasis)

26. The Hon Judge then proceeded to allow the summons for Revocation of Grant dated 29^th January 2001 and in so doing made the following orders:-

 “a.  That the grant of probate issued on 6^th November 1999 and  certificate of confirmation issued on14th July 2000 be and are hereby revoked.

b.  That the respondent [petitioner] is hereby directed to surrender to the Deputy Registrar the original Grant of probate of written will for cancellation

 c.    That the Land Registrar Murang’a is hereby directed to cancel subdivision of L.R. Loc./13/Gitugi/803 so as to revert to the position it was prior to the confirmed grant of 14^th July 2000

d.  That the grant issued and confirmed in Murang’a SRM court on 12^th july1999 be and is hereby revoked.

e.  That succession file no 1842/1999 and Murang’a succession no 132/1995 be and are hereby consolidated and same to proceed under file no 1842/1999.

 f.   That the respondents/petitioners shall file an application seeking determination of the validity of the will and the new executors to be issued with a grant of probate of written will in place of grant of letters of administration intestate  within 30days in default the grant and confirmed certificate issued in Murang’a SRM court shall be reinstated”.

27. Following the directions made in the Ruling of 10^th April 2019 the present application dated 3^rd May 2019 was filed. The key issues which arise for determination are as follows:-

 (i) Validity of the written will.

(ii) Identification of Administrators to replace the original Administrator Grace Wangari who is now Deceased.

VALIDITY OF WILL

28. Section II of the Law of Succession Act Cap 160 Laws of Kenya provides as follows:

“No written will shall be valid unless—

(a) the testator has signed or affixed his mark to the will, or it has been signed by some other person in the presence and by the direction of the testator;

(b) the signature or mark of the testator, or the signature of the person signing for him, is so placed that it shall appear that it was intended thereby to give effect to the writing as a will;

(c) the will is attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the will, or have seen some other person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary”.

29. It is alleged by the Applicants that the Deceased left a written Will dated 11^th June 1993 which Will was validly drawn and executed. A copy of the said written Will appears as annexture J & F1 to the supporting Affidavit dated 3^rd May 2019. In that Will the Deceased appoints her daughter WANGARI WA MAINA (Mrs) as Executor and vide paragraph 3, the Deceased bequeaths land parcel No. MURANGA LOC. 13/GITUGI/803 to her daughter Wangari wa Maina (Mrs). The Will attached to the supporting Affidavit is a photocopy. The court is not told where the original copy of said Will is. Rule 7(5) of the Probate and Administration Rules (Rev 1981) provides as follows:-

 “(5) Where the grant sought is one of probate of a Written will or of letters of Administration with the written will annexed there shall be lodged in the registry on the filing of the petition the original of the petition the original of the will or, if the will is alleged to have been lost or destroyed otherwise then by way of revocation or for any other reason cannot be produced, then a copy authenticated by a competent court or otherwise to the satisfaction of the court”. (own emphasis)

30. The term used in Rule 7(5) is the mandatory “shall”. Therefore, the Applicants was required to exhibit in court the original copy of the will allegedly left by the Deceased. A copy will not do. No explanation has been proffered to the court regarding the whereabouts of the original will. In absence of the original Will the Applicants ought to have annexed a validly authenticated copy of the Will. This too was not done.

31. The witnesses who allegedly witnessed the will are said to have died and are therefore conveniently not available to confirm whether or not the Deceased made a Will.  The will was not signed but bore images of thumbprints alleged to be that of the Deceased and the witness. There is no evidence that the thumbprints on the copy of the Will were actual fact were the imprints of Deceased and the said Kinyanjui wa Gathokoro. No evidence has been adduced from the Registrar of Persons who retains a record of prints of all person registered in Kenya to confirm the identity of said thumbprints.

32. I therefore find that the will purported to have been written by the Defendant does not comply with Section 11 of the Law of Succession Act. What we have is an unauthenticated photocopy of a document alleged to be a written will. The same in my view is not valid for purposes of succession.

33. It is strange and even suspiciously so, that the existence of this written will was revealed several years (in fact twenty five (25)) years after the death of the Deceased and only after the Applicants had lost the case in the Muranga Succession Cause. No mention was made of a will during the succession proceedings in Muranga.  If the Deceased had truly left a written will, then its existence ought to have been brought during the hearing of the succession cause in Muranga way back in the year 1985.

34. On the whole I find that the validity of this alleged will has not been proved on a balance of probability. The document produced in court is clearly an afterthought introduced in an attempt to bolster the Applicants claim to the suit land and I find the same to be of no evidential value. As such, this court will disregard the alleged written will as well as its contents. In the premises I find that the Deceased died ‘intestate’.

35. Having found that the Deceased died intestate and given that the Grant issued in Succession Cause No. 123 of 1995 was revoked vide the Ruling of 10^th April 2019, this court must now determine who ought to be appointed as Administrators of the estate the of Deceased as well as determination of the question regarding distribution of the suit land.

36. It has been conceded by all parties that the late Nyambia Mukaya was survived by her two daughters only, namely, Grace Wangari Maina and Margaret Wanjiru Mwangi. It is common ground that the two daughters who survived the Deceased are themselves now both Deceased. The two Applicants herein James Kariuki Maina and Florence Wanjiku Maina are the children of Grace Wangari Maina who died on 25^th February 2010. The heirs of the other daughter of the Deceased Margaret Wanjiru have not participated in this succession cause and have not made any claim to the suit land.  

37. The two applicants who are the grandchildren of the Deceased are the Administrators and legal representatives of the estate of their mother Grace Wangari Maina. A copy of the Grant issued to the two on 14^th January 2013 appears as Annexture ‘J&F’4’ whilst the certificate of confirmed Grant dated 7^th October 2014 is Annexture J &F’5’ to the Affidavit in support of the Chamber summons dated 22^nd August 2017. In light of the above facts, this court opines that the two Applicants James Kariuki Maina and Florence Wanjiku Maina are best placed to take up the Administration of the estate of their late grandmother Nyambia Mukaya thereby substituting their late mother Grace Wangari Maina who was the original Administrator of the estate of the Deceased. I note that the other beneficiaries to the estate of Grace Wangari Maina have signed a consent to this substitution (Annexture J&F ‘5’). As such, court hereby appoints the two as the Administrators of the estate of the Deceased.

38. The next question is who is entitled to inherit the parcel of land known as Loc 13/Githugi/803.  

39. It is not in dispute that the suit land was registered in the name of the Deceased. A copy of the Title Deed which appears as Annexure ‘J &F3’ to the Supporting Affidavit dated 3^rd May 2019 was issued by the Muranga Land Registry and indicates that Nyambia Mukaya was registered as proprietor of Loc. 13/Gitugi/803 on 27^th October 1966.

40. The Respondents are all descendants of the family of MAINA WA MAKUMI who had three (3) wives. The Respondents Douglas Gichure Gicheru and Charles Ngoiyo Mwangi are the son and Grandson of the 1^st wife Nyambura. The husband of the late Nyambia Mukaya was the son of the 3^rd wife Njoki. As such, the Respondents are cousin and nephew of the said Mukaya. More pertinently, none of the Respondents is a son or direct grandson of the Deceased. According to the Applicants, the Respondents who are their relatives have all been sufficiently provided for in their respective fathers estate.

41. The Law of Succession Act vide Section 35-42 provides for those who are entitled to inherit from the estate of a Deceased person who died intestate.

42. Section 38 provides as follows:-

 “Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children”.

43. The Deceased left two daughters who would under the Law obviously rank in priority over the distant cousins and nephews of her late husband.

44. The Respondents lay claim to the suit land and contend that the Deceased ‘allowed’ their father and grandfather to settle upon and farm on the suit land. That since the Deceased did not have any son it is they as male relatives who are entitled to inherit the suit land and not the female children of the Deceased who the Respondents submit are married and are entitled to inherit property in their marital homes. 

45. The Respondents submit that under Kikuyu Customary Law the two (2) daughters of the Deceased are not entitled to inherit her estate.  Indeed, under cross-examination PW1 asserts that -

 “The daughters of the Deceased are married and thus they should not inherit anything.”

46.  On his part, PW2 insists that-

 “The daughters of Nyambia have no right to inherit the land of the Deceased because we as male cousins are alive. According to Kikuyu Culture, land cannot go to women if there are male relatives alive”.

47. Firstly, there is no evidence that the Deceased allowed any person to occupy and settle on her property. There are no written documents signed by the Deceased permitting occupation of her land by others. Neither has there been evidence from an independent witness confirming that the Deceased permitted her husband’s relatives to settle on and farm her land.

48. Whilst giving evidence PW1 was reluctant to state whether he had inherited any property from his own father.  I was able to observe the demeanour of PW1 as he testified.  He did not strike me as an honest witness. PW1 claims that Plot 803 had been given to his father and uncle by the husband of the Deceased. If this was the case then why did the said property remain registered in the name of the Deceased. There is no evidence of the transfer of the suit land to any other person. On his part, PW2 admits that he and his brother inherited the land left by their late father. Why would PW2 having inherited land from his own father also lay claim to land left behind by his uncle’s wife?

 49.  Secondly the Law does not make any distinction between a male or a female child. Both have equal entitlement to inherit the property of their parents.

50. Article 27 of the Constitution of Kenya 2010 provides for Equality and freedom from discrimination.  Article 27 (3) provides that:-

 “(b) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres”.

51. It would be discriminatory and unconstitutional to shut out the daughters of the Deceased from their right to inherit merely because they were married women. The Deceased daughters are entitled to enjoy the same right of inheritance as any male child would enjoy.  Therefore the Respondents reliance on Kikuyu Customary Law, is retrogressive and has no place in this Succession Cause.

52. In the case of STEPHEN GITONGA M’MURITHI VS FAITH NGIRA MURITHI [2015] eKLR the Court of Appeal made it abundantly clear that for purposes of the Law of Succession the child of a deceased person have equal status irrespective of their gender and/or marital status.  In that case, the court held –

“Section 38 enshrines the principle of equal distribution of the net intestate estate to the surviving children of the deceased irrespective of gender and whether married and comfortable in their marriage or unmarried. Section 40 on the other hand enjoins the inclusion of a surviving spouse as an additional unit to each house hold of a polygamous deceased. Applying the above principles …it is our finding that the learned trial Judge fell into an error when he failed to accord equal distribution to all the children of the deceased in violation of section 38 of the Law of Succession Act by discriminating against the married daughters of the deceased…”. (own emphasis)

53. Similarly, in the case of ELISEUS MBURA M’THARA – VS HARRIET CIAMBAKA & ANOTHER [2012 eKLR it was held as follows:-

 “The Law of Succession Act does not discriminate between gender in matters of succession or inheritance.   Under the Law of Succession Act and indeed under the Constitution a child is a child and every person has equal rights under the law irrespective of gender. The Law of Succession Act does not discriminate between married or unmarried daughters but gives them equal rights to inheritance as the other children (sons) of a deceased person.” (own emphasis)

54. Finally, in PETER KEINGATI & 4 OTHERS VS DR ANN NYOKABI NGUITHI [2014] eKLR Hon Justice Luka Kimaru stated as follows: -

 “…The decision by a daughter or a son to get married has no bearing at all to whether or not such a son or daughter is entitled to inherit the property that comprise the estate of their deceased parents…This court is of the view that the time has come for the ghost of retrogressive customary practices that discriminate against women, which have a tendency of once in a while rearing its ugly head to be forever buried. This ghost has long cast its shadow in our legal system despite numerous court decisions that have declared such customs to be backward and repugnant to justice and morality. With the promulgation of the Constitution 2010, particularly Article 27 that prohibits discrimination of persons on the basis of their sex, marital status or social status, among others, the time has now come for these discriminative cultural practices against women to be buried in history.” (own emphasis)

55. Therefore the daughters of Nyambia Mukaya notwithstanding the fact that they were of female gender and notwithstanding the fact that they were married were entitled to inherit the property of their late mother and ranked in priority to the Respondents who have no claim over the properties of the Deceased as they were not dependants of the Deceased in terms of Section 29 of the Law of Succession Act.

56. Accordingly, I find and hold that the suit property Loc. 13/Gitugi/803 would rightfully devolve to the two daughters of the Deceased Grace Wangari Maina and Margaret Wanjiku Mwangi.

57. Given that the two daughters of the Deceased have since both passed on, the estate property ought rightfully devolve to the survivors of the said daughters. It would appear that Margaret Wanjiru had no survivors as none has come forward to join this suit nor has any made a claim to the estate of the Deceased.

58. However the late Grace Wangari Maina was survived by several children who included the two Applicants. Section 35(5) of the Law of Succession Act Provides:-

 “(5) Subject to the provisions of section 41 and 42 and subject to any appointment or award made under this section, the whole residue of the net intestate estate shall on the death, or, in the case of a widow, re-marriage of the surviving spouse devolve upon the surviving child, if there be only one, or be equally divided among the surviving children”.  

59. Therefore the net estate of the Deceased following the death of her two daughters is to devolve to the surviving children of the said daughters, who include the two Applicants and their siblings.

60. Finally and in conclusion this court makes the following orders: -

1. THAT the Deceased NYAMBIA MUKAYA died intestate.

2. THAT the Applicants JAMES KARIUKI MAINA and FLORENCE WANJIKU MAINA are hereby appointed as Administrators of the estate of the Deceased. 

3. THAT letters of Administration Intestate to issue in the names of the two Applicants.

4. THAT the property known as LOC. 13/Gitugi/803 forms part of the estate of the Deceased.

5. THAT the following the demise of the two (2) daughters of the Deceased, GRACE WANGARI MAINA and MARGARET WANJIRU MWANGI the property known as LR Loc. 13/Gitugi/803 shall devolve to the beneficiaries of the estate of GRACE MAINA WANGARI to be distributed as agreed between themselves.

6. Upon agreement on a mode of distribution but in any event not less than sixty (60) days from the date of this Ruling, the Applicants to file a summons for confirmation of Grant.

7. THAT this being a family matter each side shall met its own costs.

Dated in Nairobi this 18^th day of March  2022.

…………………………………..

MAUREEN A. ODERO

JUDGE